A federal court in Chicago dismissed expert witness testimony in an asbestos lawsuit last month due to insufficient scientific support for the “Any Exposure” theory relied upon by the expert. The “Any Exposure” theory, discussed among asbestos and medical experts, argues that any level of asbestos exposure, no matter how minute, could cause long term medical harm. The US District Court for the Northern District of Illinois ruled that the expert theory was insufficiently supported by medical science and dismissed the testimony from trial.

Asbestos Lawsuit Argues “Any Exposure” Theory

Charles Krik filed a lawsuit against several companies alleging that he developed lung cancer as a result of his exposure to asbestos-containing products. The defendant looking to dismiss the “Any Exposure” theory, ExxonMobil, argued that its role in Mr. Krik’s injury was too small to justify inclusion in the lawsuit. As part of his evidence, Krik sought to introduce asbestos expert testimony from Dr. Arthur Frank who was prepared to opine that each instance of exposure to asbestos, regardless of duration, is a medically significant factor in causing conditions such as lung cancer.

The theory relies on scientific studies that indicate there is not a known threshold for safe levels of asbestos exposure, and argues that a single dose of asbestos is dangerous. Mr. Krik argued that his lung cancer was caused by cumulative exposure to small doses, and looked to the “Any Exposure” theory to demonstrate that each exposure, regardless of dosage, was a contributing factor to the cumulative effect the asbestos had on his body. Had this theory been accepted, ExxonMobil could be found liable despite its argument that the Plaintiff could not demonstrate he had been exposed to asbestos on company property.

Federal Court Denies “Any Exposure” Theory

This “Any Exposure” or “Each and Every Exposure” theory has been adopted by some medical experts who study the effects of asbestos, but the theory had not been advanced in federal court until Krik’s case. The Chicago federal court was tasked with applying the admissibility standards of expert witness testimony outlined in Federal Evidence Rule 702 and Daubert v Merrell Dow to determine if the “Any Exposure” theory is scientifically reliable enough to be used in legal cases. After reviewing the theory and its possible application to Krik’s asbestos lawsuit, the court denied portions of the expert testimony that attributed cause of the plaintiff’s lung cancer to any small dosage.

The court’s primary issue with the “Any Exposure” theory presented during pre-trial expert reports was its lack of toxicological basis and disregard for the scientifically held belief that the “dose makes the poison.” Declining to address the issue about the level of asbestos exposure required to cause lung cancer was part of the plaintiff’s strategy, and the court found this to be a fatal flaw in the effort to connect the defendant’s actions to the plaintiff’s injuries. The court was not persuaded by the approach taken by Krik’s expert witness, who merely argued that the “Any Exposure” theory generally suggested that any and all exposure to asbestos was sufficient to cause harm and declined to provide specific evidence about the doses Mr. Krik had been exposed to from the defendant’s products, and found the proposed expert testimony to be “unacceptable” as evidence of cause.

Expert Witnesses on Asbestos Exposure Allowed

Although Mr. Krik failed to present an expert witness that offered acceptable testimony on the “Any Exposure” theory, the court would allow experts to discuss how his specific exposure level could contribute to lung cancer. Mr. Krik will be permitted to have fact witnesses testify about his exposure to asbestos while at the ExxonMobil facility, and then use expert testimony to connect the particular exposure he suffered to the cause of lung cancer. Unlike the “Any Exposure” testimony, Krik’s acceptable expert testimony would specifically attempt to link his asbestos exposure to his lung cancer.

The “Any Exposure” theory is not necessarily left outside of the courtroom looking in after this ruling. While plaintiffs should be cautious about advancing a theory that has questionable scientific support, the court left open the possibility of an asbestos expert witness using the “Any Exposure” theory to explain case-specific facts in an effort to link exposure to a medical harm. The Krik expert witness failed largely because he spoke too generally and did not provide enough specific evidence identifying the defendant’s actions as cause of the plaintiff’s harm, but a carefully crafted expert opinion could remedy this misstep by better incorporating the “Any Exposure” theory into the facts of the case in question.

About Colin Holloway, Attorney at Law

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Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

About Colin Holloway, Attorney at Law

LinkedIn
Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.